The Supreme Court of Canada has ruled that removing a misconduct finding from a police officer’s disciplinary record does not erase its relevance to a criminal prosecution or force an accused person into a more demanding process to obtain it.
In Edmonton (Police Service) v. McKee, 2026 SCC 24, Justice Sheilah Martin wrote for a unanimous seven-judge court dismissing the Edmonton police chief’s appeal. The June 26 decision upheld an Alberta disclosure order and required the chief to pay John McKee’s costs on a solicitor-client basis.
The court also clarified the division of responsibility between police and prosecutors. Police may initially assess misconduct records for relevance, but must tell the Crown what they withhold and why. The Crown makes the ultimate disclosure decision, subject to review by a court, and police cannot use their own privacy assessment to block relevant information from reaching prosecutors.
A disciplinary finding survived in another prosecution file
McKee faced drug, weapons and possession-related charges arising from an Edmonton investigation. The lead detective had been the subject of a misconduct finding in July 2015. Police supplied that decision to the Crown in an unrelated prosecution, where a redacted version was disclosed to the defence.
By January 2022, the finding had been administratively removed from the detective’s disciplinary record under Alberta’s Police Service Regulation. When police supplied disclosure for McKee’s case that June, they reported no relevant disciplinary record for the detective. McKee’s lawyer learned by chance that the Crown held the earlier decision and requested it in July 2023.
The prosecutor retrieved the decision from the other prosecution file and concluded that it had a realistic bearing on the detective’s credibility and should be disclosed in matters where his involvement was more than peripheral. Police opposed disclosure because the finding had been expunged. The Crown told McKee to apply for disclosure and said it would consent.
An Alberta Court of King’s Bench judge ordered disclosure in 2023. The police chief obtained leave to appeal directly to the Supreme Court; no appeal was taken to the Alberta Court of Appeal. The dispute concerned access to the disciplinary information, rather than a determination of the charges against McKee.
Administrative removal is not erasure for criminal proceedings
The chief argued that expunged records were no longer subject to ordinary first-party disclosure and should instead be sought through the more restrictive third-party production procedure. The court rejected that approach. A regulation governing internal discipline could not displace an accused person’s constitutional right to make full answer and defence.
Under the Stinchcombe and McNeil framework, relevant, non-privileged information held by the prosecuting Crown, or information police ought to provide to it, ordinarily forms part of first-party disclosure. The O’Connor procedure governs material outside that sphere and places an initial burden on the accused to establish likely relevance. Administrative expungement does not by itself move information from the first regime into the second.
Alberta’s former regulation required certain entries to be removed and destroyed after a misconduct-free period. Read in context, the court held, that rule concerned future disciplinary-related proceedings against the officer, not criminal disclosure. Edmonton police in fact retained mirrored copies in historical or inactive files. Police must maintain administratively expunged disciplinary records so they and the Crown can meet disclosure obligations.
The judgment notes that the former regulation had been repealed, but a substantially similar provision continued in the Police Conduct and Oversight Regulation. It also distinguishes administrative removal from a free pardon under the Criminal Code or expungement under the Expungement of Historically Unjust Convictions Act. Those measures have different legal effects and are not displaced by this ruling.
Relevance is a low threshold, not a list of serious offences
Misconduct connected with the investigation must be provided to the Crown. Misconduct from another matter can also qualify if it could assist the accused in meeting the prosecution’s case, advancing a defence or deciding how to conduct it. Depending on the circumstances, that could include information bearing on an officer’s honesty, reliability, investigative integrity, bias or interview practices.
The court rejected a separate, higher test of “obvious” relevance. It also explained that “serious misconduct” in this context turns on the information’s importance to the defence, not simply the disciplinary label, penalty or abstract severity of the officer’s conduct. The age of a finding can affect its relevance, but does not categorically exclude it.
The ruling updates the guidance known as the Ferguson Five, which identifies categories of charges, findings and convictions for police disclosure. Those categories assist police in sorting records, but are not an exhaustive code. Police must provide at least the associated charge information and must supply further particulars when the Crown requests them; disclosure is not confined to a bare criminal-record-style entry.
That does not entitle an accused to every detail of an officer’s employment history. Police retain a bounded screening role. If they conclude that misconduct information is irrelevant, they must identify its nature and content to the Crown and explain the reason for withholding it. Prosecutors can request particulars and override that initial assessment.
Privacy safeguards and a duty to inquire
Officer privacy remains relevant to how disclosure is handled. Police can flag concerns, and the Crown can consider notice, submissions and tailored safeguards. Redactions cannot remove relevant portions of the record. The court’s approach protects privacy only to the extent consistent with the accused’s fair-trial rights; it does not make disciplinary files generally public.
The Crown must also make reasonable inquiries when alerted to potentially relevant information. Notice can come from defence counsel, another prosecutor, media reports or knowledge within a prosecutor’s office. A record does not become third-party information merely because it is stored in another prosecution file. The duty is limited where the notice is unfounded or obtaining the material is not reasonably feasible.
Applied to McKee, the Crown had already retrieved the decision and assessed it as relevant. It should therefore have disclosed it without requiring him to bring an application. The Crown’s willingness to consent did not cure that error, although the court found its conduct did not meet the exceptional threshold for a costs award against prosecutors.
The court instead ordered solicitor-client costs against the police chief. Despite the Crown’s relevance assessment, police had persisted in resisting disclosure, and the chief pursued a test case about the broader law that caused further delay to McKee’s trial. The court concluded that McKee should not personally bear those financial costs. It also admitted further correspondence to complete the procedural record and inform the costs issue.
